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Thursday, July 04, 2019

It's the district court order, not the SCOTUS affirmance

On the eve of Friday's hearing on the next steps in the census case, more thoughts on nomenclature: The concern about the should not be framed as "The President is disobeying a Supreme Court decision."* The concern should be framed as "The President is disobeying a court order."

[*] Decision is an imprecise word, in any event. The court issues a judgment/order and the court issues an opinion explaining that judgment. I suppose a decision encompasses both of those. But when the judgment/opinion distinction matters, as it does, the specific words are preferable.

The key is that an injunction, entered by the district court, is in place and prohibits the printing and use of a census form with a citizenship question. That order prohibits the government from proceeding with a census containing that question and that order is what the President, Commerce, et al. violate if they proceed with the question.

That the Supreme Court affirmed the district court injunction is beside this point. SCOTUS affirmance means the government has nowhere left to turn within the judiciary. But it does not add greater force to the district court's injunction. Government officials violate the order by proceeding with the census-with-citizenship-question--whether they had proceeded the day before SCOTUS affirmance or the day after SCOTUS affirmance.

Comments

Sort of true and sort of not. Well, mostly not. As the Court describes the district court's injunction, it "enjoined [the Secretary] from reinstating the citizenship question until he cured the legal errors the court had identified." Those errors include a great number of errors that the Court will go on to hold are not errors. And if you read the specifics of the injunction, which you can find at page 272 of the court's opinion,* the Secretary has to do quite a few things under that injunction, like curing supposed Census Act violations and exhausting alternative means of procuring citizenship data, that the Court says he doesn't have to do before he can reinstate the question -- because they think there are no Census Act violations and that the decision not to rely on those alternative means was reasonable. So what has actually happened is that the remand to the agency has been affirmed, but the injunction (assuming it survives, a point on which the Court is actually silent and which doesn't necessarily follow from the affirmance of the remand, for, as the district court pointed out, injunctions are not the norm in a case like this) has been greatly narrowed. Whatever injunction remains is arguably that of the Court.